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There will always be detractors to judicial review. On face value, it flies in the face of liberal democracy. Elected representatives carry out the will of the people. If the citizens have sanctioned these individuals to pass laws and legislation to protect and represent their interests, then it seems antithetical to democratic aims that we would empower nine people removed from the situation to render judgments that would nullify such laws. However, upon further examination, it is precisely because of this system of checks and balances that judicial review is aligned to the promises and possibilities of liberal democracy. Judicial review provides the frame of reference that citizen- run governments must respect:
Judicial review is the idea, fundamental to the US system of government, that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judicial branch.
The ability to review "actions of the executive and legislative branch" is the precise reason why judicial review is important to liberal democracy.
There will be challenges to its role when political interests are themselves put at risk under judicial review. No greater was this evident than in the case of Young v. Weston. The case challenged the Washington state statute that if an accused person is found to be a "sexually violent predator," at the end of their sentence they are confined to a civil commitment. The issue for the court was whether this statute challenged the Constitution's prohibition of double jeopardy. The argument goes that if one has already served their time in a state facility, the civil commitment is a "second" punishment. The public gave their assent in the passage of the statute in the form of legislators who passed it. The case made its way to the Supreme Court where the justices reviewed the statute.
In the end, the Court "rejected the challenge to the law over the objection of a single Justice." However, the issue is whether the power of judicial review is abused in federal courts. I would suggest that the power of judicial review is not abused in this case, and in general. The Constitution establishes that checks and balances only works if an independent judiciary has the ability to deem "laws and actions" as constitutional. If this goes away, then legislators possess all the power. One need only point to cases involving Civil Rights in the 1950s and 1960s as an example of how independent judiciaries are needed to initiate action when legislatures and executives are too slow or unwilling to do so. Indeed, some might argue that having the ability to "constitutionally punish" state statutes is an abuse of power. While such a notion can be persuasive, I think that the American government designs the judicial branch precisely as the "watchdog" of Constitutional issues. The fear of using judicial review to be "unconstitutionally punitive" is a warranted one. However, the reality is that federal courts must safeguard Constitutional issues. There are times when elected legislators are wrong and there are times when society is wrong. The Constitution designs powers that are meant to be reflective of the need to "form a more perfect union." The courts are the last line of defense in presuming that the Constitution's intent is preserved when we might err. In this regard, the court's actions under judicial review are warranted, even to overturn a state mandate that has been legislatively and executively sanctioned. This was the case in Young v. Weston. Certainly, proponents of specific legislation that is reviewed by the courts under judicial review will be discouraged. This is no different than those who were against Civil Rights were discouraged with the Court's rulings or when those who favored authoritarian power at the cost of the rights of the accused were discouraged when the Courts spoke in those instances. Yet, the one constant is that judicial review ensures that the Courts always do speak, and this is not necessarily an abuse, as much as a safeguard of the intent within the Constitution.
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